Court File and Parties
COURT FILE NO.: 17-61352 DATE: 2017-07-20 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Liberty Mutual Insurance Company and Liberty Insurance Company of Canada Plaintiffs
Dwain C. Burns, for the Plaintiffs
- and -
Rose Venneri Donatelli, Michael Venneri, Professional Counselling Services and Comprehensive Health Clinic Inc. Defendants
Paul D. Stern, for the Defendants
HEARD: May 17, 2017
Reasons for Judgment
I. Introduction
[1] The defendants have moved, pursuant to Rule 19.08, to set aside the noting of default dated January 5th, 2012, and the default judgment granted September 19th, 2013. As noted above, this motion was heard May 17th, 2017.
[2] The times experienced between the orders appealed from and the actual hearing of the motion, reflected in terms of years, are characteristic of this litigation, which commenced with a Statement of Claim issued September 16th, 2003. This matter will never be cited as a model of alacrity. It does not accord with the general principle of the rules stated in Rule 1.04(1): “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on the merits”.
[3] Consistent with the above principle, the Rules provide penalties for bad litigious behaviour. For example, Rule 2.01: non-compliance with the Rules; Rule 19: failure to deliver pleadings in time; and Rule 30.08: failure to disclose. Such delicts can result in cost consequences. Rule 57.01(f) refers to conduct of a party being “improper, vexatious, or unnecessary”, and prolonging litigation. The failure to satisfy a cost award itself can result in the striking out of pleadings.
[4] The time dissipated in this litigation is directly related to “bad litigation behaviour”. Needless to say, such behaviour can be demonstrated by both sides. That being said, the history of this litigation leading up to this latest motion will reveal a clear offender(s).
II. The Issues
(a) Does the Court have jurisdiction to set aside the default judgment of Madam Justice Walters dated November 19, 2013;
(b) Assuming that (a) is answered in the affirmative, is the test for such a step pursuant to Rule 19.08 satisfied?
III. Factual Background
[5] Between the end of October 1999 and August of 2001, Liberty (a short form designation of the plaintiff) had received several invoices for psychological counselling from Dr. Rose Donatelli (Dr. Rose, as she was referred to by her son, Michael Venneri in his dealings with some of his chiropractic patients).
[6] One of the patients, Barbara Fritz, provided a clipping from the St. Catharines Standard, dated October 6th, 2001 to a claims specialist at Liberty in the No-fault Insurance Unit. That article, in turn, was forwarded to Ken Laliberte, a special investigator with the company. That clipping spoke of how several entities (not Liberty, despite what the Venneri’s state), namely the Workplace Safety Board, the Insurance Board, Equitable Life Insurance of Canada, and the College of Psychologists of Ontario, had complained about Dr. Rose promoting herself as a qualified psychologist. Dr. Rose’s qualifications had been forwarded by her to Jeff Liski, by way of a letter dated October 28th, 1999. The covering letter was signed by Dr. R. Donatelli, the letterhead described her as a Ph.D.
[7] The curriculum vitae attached referred to: a Ph.D. from LaSalle University in 1994, later discovered to be a diploma mill, a Ph.D. (a.b.d.) from the University of Toronto (1993), and a Ph.D. (a.b.d.) from the State University of New York State at Buffalo (1989). It was then discovered that the latter two institutions had never granted Dr. Rose a Ph.D. Apparently, as revealed at the examination for discovery March 7th, 2007, Dr. Rose acknowledged (Q. 191) that the reference to “(a.b.d.)” after the degree is not “anything that any university does”. That is usually a place reserved for reference to a particular university, i.e. Oxon, Cantab, or the fact that the degree is an honorary degree. So, the only logical source of “(a.b.d.)”, which apparently stands for “all but dissertation (thesis)”, is the author of the curriculum vitae: namely, Dr. Rose. Dr. Rose has never earned these degrees from either U of T or University of New York State at Buffalo. She conferred upon herself two Ph.D.’s without submitting a thesis. Given the age of these convocations, i.e. 24 to 28 years ago, it is unlikely that the institutions will ever grant to Dr. Rose these qualifications she bestowed upon herself. So, Rose Venneri has never had a Ph.D. in psychology.
[8] Granting yourself an academic qualification is not in itself problematic as long as you do not hold yourself out as one who possesses the real qualification, and seek reimbursement for services rendered based on the preferred qualification. It is essentially a species of misrepresentation.
[9] Unfortunately, that is what Rose did; her correspondence, even with the attached C.V., perpetrates the myth. The invoices sent to Liberty were rife with references to Dr. Rose Venneri, Ph.D.; Treatment Plans she prepared for Wendy Montanaro (see tab 22 of the Affidavit of Ken Laliberte dated August 14th, 2013), Barbara Fretis (Ibid., tab 24), and Dennis Rogers (Ibid., tab 28) referred to a Ph.D. She also ticked off “psychologist”, complete with a particular registration number.
[10] Notwithstanding the subsequent protestations by Rose that there were no other options to tick off (actually she could have ticked off “other”) and that was her registration number for the Ontario Psychological Association versus the College of Psychologists, the overall impression to an objective observer would be that this individual was a registered psychologist with a Ph.D. in the subject. Her son, Michael Venneri, perpetuated this myth in his treatment format.
[11] This is the thrust of the Statement of Claim, issued by Liberty on September 16th, 2003.
[12] The Venneris, rather than going quietly away, having been so exposed, struck back with a Statement of Defence and Counterclaim, claiming astronomical sums for defamation, etc. The fight was on. What evolves in the litigation itself is a course of conduct which inhibits the expeditious and just resolution of the issues. The best window into this behaviour is presented by the various decisions referred to in the Amended Compendium of Decisions.
IV. The Amended Compendium of Decisions
a) The Judgment of Matheson J. dated August 11th, 2008
[13] The writer has to resist the temptation to underline all the dates of this and subsequent judgments to illustrate the passage of time. As His Honour indicated at paragraph 50, his was not the first judgment concerning this litigation: a) Master Sedgwick, the 12th of May 2004, had ordered the defendants pay costs of $750.00 forthwith; b) Justice Quinn, the 7th of July, 2005 had ordered Rose to pay $500.00 in costs; and c) Justice Quinn, the 18th of July, 2007 again ordered the defendants jointly and severally to pay costs of $17,400.00 for several motions, plus $1,000.00 and GST for the motion before him. All of the costs were outstanding as of the Matheson judgment.
[14] Matheson J. had before him a motion for failure to provide answers to the undertakings given at the discovery of the defendant Rose, and a motion for security for costs. From a review of his judgment, the refusals were obvious: counsel for the defendant Rose had clearly committed her. Years after the fact, in her latest affidavit in support of the motion before this court, Rose suggests that Mr. Yachetti, a bencher for life, was operating out of the scope of his retainer. This is an assertion typical of these defendants: it is always the other person’s fault.
[15] Matheson J. ordered that the outstanding cost orders of $19,710.00 be paid within 30 days, otherwise the Statement of Defence and Counterclaim would be struck. He also ordered $100,000.00 for security for costs. His judgment was appealed, and Hambly J., on May 8th, 2009, granted leave to appeal to the Divisional Court. His Honour doubted the right of a court to grant security for costs in these circumstances. He did not doubt the validity of the cost orders that Matheson J. made or the alternative of striking the defence pleadings.
[16] In her affidavit of June 23rd, 2016 before this court, and on the grounds of her motion presumably of the same date, Rose suggests Hambly J. was biased.
b) The Divisional Court Panel
[17] By judgment dated November 19th, 2010, the Divisional Court agreed with Hambly J., with respect to the lack of valid circumstances with respect to an order for security for costs. However, the court upheld the aspect of the Matheson judgment that the defendants had appealed as well, with respect to the accumulated costs and the striking out of pleadings in the event of a failure to discharge.
[18] Within a matter of weeks of the Divisional Court judgment, the plaintiffs moved to strike out the defendants’ pleadings before MacPherson J.
c) The Judgment of MacPherson J. dated December 2nd, 2010
[19] The 14 page judgment was given orally. Her Honour noted how the plaintiffs moved to strike the Statement of Defence and Counterclaim as a result of the defendants’ failure to pay 8 cost orders and Rose’s continual failure to answer her undertakings. The judgment sets out the history of this matter, much of which has been set out above. The amount of the original claim by the plaintiffs for the false invoicing was $31,689.00.
[20] Her Honour set out the various court orders granting costs, again as set out above. It was noted that the failure of Hambly J. to grant leave with respect to the cost orders meant that those orders were very much alive. The Hambly J. order generated yet another order for costs in the amount of $15,590.00, payable within 30 days.
[21] More cost orders were made in 2009 relative to applications for leave to appeal that did not proceed. Specifically, on December 17th, 2009, Quinn J. ordered the defendants to pay costs in the amount of $1,200.00 plus GST payable forthwith.
[22] On December 23rd, 2009, Justice Walters ordered yet again against the defendants costs in the amount of $5,000.00 including GST and disbursements.
[23] On February 2nd, 2010, Justice Festeryga ordered the defendants to pay costs of $1,000.00 inclusive of GST within 30 days (to be demanded, which the plaintiffs did).
[24] Justice MacPherson calculated the total of the cost orders preceding the appearance before her to total $46,560.00.
[25] The Divisional Court, according to Her Honour, carefully set out a chronology of the steps in this proceeding. That court had noted the deficiency of the material filed by the defendants. In fact, the defendants had been before the Divisional Court on three occasions. On the first two, they were unprepared, and on the third, they were forced on with a restricted appeal.
[26] Before Justice MacPherson, the defendants argued that the striking out of their pleadings was res judicata, given the judgment of Matheson J. Her Honour quickly observed that the striking out was contingent upon a continued failure to pay costs within 30 days.
[27] In her conclusion, MacPherson J. cites many of the rules and the philosophy of the rules referred to at the outset of this judgment.
[28] The time expired over the years since the original claim was identified. Her Honour stated: “To this point, the court has made every effort to balance the right of the defendants to have their case heard and to avoid a slavish adherence to the rules. But in light of all the circumstances of this case, to permit the defendants to continue without following cost orders, would result in the cost orders having no meaning. The only way to give cost orders meaning is to enforce them”. Accordingly, Justice MacPherson struck the pleadings of the defendants.
[29] Costs again were ordered against the defendants in the motion in the amount of $6,000.00 inclusive of GST and disbursements. The defendants were additionally ordered to pay to the plaintiffs their costs of this action inclusive of the $6,000.00 and all previous cost awards in the amount of $52,560.00.
[30] The defendants, using Christopher Ashby as counsel, appealed the MacPherson judgment to the Court of Appeal. There is absolutely no indication that anyone argued that this was not the proper appellate route; in other words, the appeal was treated as “from a final order” within the jurisdiction of the Court of Appeal.
[31] A panel consisting of Justices Doherty, Weiler, and Cronk dismissed the appeal, finding that there was no error in the exercise of the discretion by Justice MacPherson.
[32] Again, costs were awarded against the appellant in the amount of $5,000.00 inclusive of HST and applicable taxes.
[33] Leave was sought to appeal the decision of the Court of Appeal, which was denied with costs by the S.C.C.
d) The Judgment of Walters J. dated September 19th, 2013
[34] Naturally, after the judgment of MacPherson was upheld, at two levels of appellate courts, the plaintiffs would move for default judgment. In her written endorsement, Justice Walters, like practically every other jurist who has touched this file, observed the passing of ten years, and stated that this delay was “in large part due to the conduct of the defendants in bringing several motions and failing to comply with court orders”. The outstanding costs as of the matter before Her Honour was $71,536.36. This was on a claim originally for $31,000.00.
[35] Not one to mince words, Justice Walters stated that “the defendants had defrauded the plaintiffs of some $28,000.00. More importantly, the insureds treated by the defendant Donatelli (Rose) were duped into believing they were treated by a qualified psychologist who held herself out as having a Ph.D.” It was that latter conduct which justified punitive damages, damages to reflect behaviour that is reprehensible by community standards, in the amount of $10,000.00.
[36] In total, Justice Walters ordered:
a) Judgment in the amount of $28,761.35; b) PJI from September 18th, 2003, in the amount of $8,630.77; c) Plaintiffs are entitled to their costs in the amount of $20,000.00; and d) Punitive damages as referred to above in the amount of $10,000.00.
V. The Procedural History of the Motion Before this Court
[37] The motion was adjourned on consent February 2nd and 9th of this year.
[38] On March 23rd, 2017, Michael Venneri sought an adjournment to obtain counsel. He spoke of a Mr. Cohen representing him. Justice Arrell said that if that were the case, Mr. Cohen would have to file the appropriate notice by March 30th, 2017. On consent, the matter was traversed to Hamilton with time allowed for Mr. Cohen to familiarize himself with the file. Mr. Venneri was to file any additional material by April 18th, 2017. The matter was to be heard peremptorily on the motion list for April 25th, 2017.
[39] Again, costs were awarded by Justice Arrell to the plaintiffs in the amount of $750.00.
[40] On April 25th, 2017, the defendants, appearing before Justice Goodman, requested yet another adjournment despite the peremptory order of Arrell J. Goodman J., like his predecessor, granted the adjournment but made the matter peremptory to be heard on the long motions held in the week of May 15th, 2017. Again, costs in the amount of $750.00 payable forthwith were ordered to the plaintiffs.
[41] So in 14 years, the relief granted has been primarily that of costs payable by the defendants.
VI. The Material Filed on Behalf of the Defendants in this Motion
[42] The supporting material filed the Venneri’s (mother and son), and that of the student is an eclectic mixture of accusations, argument, and bold assertions.
[43] Part I of the Venneri’s motion to set aside the judgment of MacPherson J. and the subsequent default judgment claims that Rose suffered from a disability. That assertion stems from a single piece of correspondence directed to “who it may concern”, dated February 10th, 2010 (over seven years ago). The author requests, on behalf of Rose, a simple extension of time for preparation. The Venneris never moved to have a guardian ad litem appointed to represent Rose’s interests, yet they somehow blamed the plaintiffs and courts for not recognizing this special status.
[44] Both of the Venneris say their lawyer, Mr. Simmons, did not do what he was supposed to do. A subsequent lawyer, Timothy Pedwell, was incompetent and was disbarred. Pedwell did not keep them advised. It is the incompetence of that lawyer that puts them in the position that they are in today.
[45] There is no evidence to support the original claim (forget, for a moment, the treatment plans submitted and the bogus C.V.).
[46] Mr. Yachetti, at the examination for discovery, should not have agreed to the undertakings he did.
[47] In Part II of the motion to set aside, the grounds morph into bold assertions and arguments. One of the favourites is that at the commencement of this millennium, one did not have to have a Ph.D. in psychology to provide counselling within the no-fault regime. Even the student got caught up in this faux argument. That may have been the case, but that is not the issue. The issue is that the Venneris promoted the bogus impression that Rose was so qualified.
[48] There was no “scintilla of evidence from other parties; i.e. the NRP, the OPP, and the RCMP to support the false allegations”. Who cares? The plaintiff had documentation, especially the C.V., which clearly demonstrates the myth.
[49] The insurance company should have investigated further. They should have known the number given by Rose was for the Ontario Psychological Association. Unfortunately for Rose, she did not make that distinction when she filled out the treatment plans. This assertion made by the student and the Venneri’s is an example of a counterattack that obscures the documentary proof with a positive assertion of a negative.
[50] Other grounds for the relief sought are quite extravagant: a) insurance fraud is how insurance companies in Ontario recoup their losses; b) the plaintiffs will be revealed at trial to have responsibility for the death of a 27 year old man killed by one of their insureds; c) the MacPherson judgment was flawed (Court of Appeal did not think so); d) the defendants were prejudiced by having lawyers who had also worked for the plaintiffs; e) the Attorney General of Ontario will appoint a layperson to the Rules committee to make the rules more comprehensible; and f) as a result of this case, a research project has been established at U of T by the Minister of Health and the Minister of Finance.
[51] Rose’s affidavit makes some specific allegations: a) Walter J. made an order based on false affidavits; b) the patients she treated improved; c) Justice Hambly was biased; d) there were no documents (aside from what she herself generated) in which she is referred to as a psychologist; e) at no time did she tell a patient she was a doctor of psychology (that is not the point; she held herself out as such to the plaintiffs); and f) TD Bank, which has absorbed the plaintiffs, was involved in the Bernie Madoff Ponzi scheme.
[52] As mentioned above, Rose appears to be oblivious to the “holding out”. Somehow they think there is value in that when no one said (aside from the Venneris) that Rose was a psychologist. That is about as relevant as no one said that she was an astronaut.
[53] Resort is made to unsworn statements by John DeGraham, containing double hearsay from a Dennis Rogers.
[54] Other insurance companies were told she was not a psychologist. Again, how is that relevant? That was not the impression that the Venneris perpetrated with the plaintiffs.
[55] Somehow the student confuses unregulated health professionals with unregistered health professionals, and somehow, by virtue of the referral from a registered health professional, the insurance company would know that Rose was not a registered psychologist herself (ref. para. 5 student’s affidavit of May 8th, 2017). That is nonsensical.
[56] As before, the fact that Rose could counsel people, in that time period, does not excuse the “holding out”.
[57] The student’s affidavit becomes even more desperate with the accusation that the plaintiff failed to provide full and frank disclosure of material Rose herself generated and had in her possession.
[58] Not all the referrals to Rose were from Michael Venneri. So what?
[59] As an aside, one does wonder how a chiropractor could make referrals with respect to post-traumatic stress syndrome.
[60] The student’s affidavit concludes with bold assertions and conclusions, the strongest point being the inane suggestion that because one did not have to be qualified to provide counselling, Rose was okay to do what she did. As previously stated, that totally misses the fact of her holding herself out as a particularly qualified professional.
VII. Applicable Law
[61] To state the obvious, a default judgment occurs after a “default” by a party. That default, as we have seen in this case, can be as simple as not paying costs judgments. Other defaults can be based on an absence of pleadings as opposed to pleadings struck out, because of the former specie of defaults; such default judgments are almost administrative phenomena. That is not the case here: the pleadings were struck out after repeated warnings, one of which was that of Matheson J., and repeated bad litigation behaviour.
[62] It is understandable with the “administrative defaults” that it would be desirable to make the actual default judgment, the point at which a party could move to set aside that judgment. In a way, it is more efficient.
[63] One of the consequences of being noted in default is, according to Rule 19.02(a), that a defendant is “deemed to admit the truth of the allegations of fact made in the statement of claim”. That being said, the facts of the claim have to be sufficient for judgment (Rule 19.06).
[64] Another consequence is that the plaintiff may move for judgment on the statement of claim (Rule 19.03).
[65] Rule 19.08 provides that a default judgment may be set aside, whether it be an “administrative” phenomena or not. The use of the word “may” suggests that discretion to be exercised by the motions jurist.
[66] Most of the submitted case law focuses on the principles that guide the exercise of this discretion. That being said, the suggestion that there are situations in which the motion to aside amounts to a collateral attack on a final decision would pre-empt such a discussion.
[67] Therefore, it makes sense to discuss the jurisdictional issue based on an alleged collateral attack before reviewing the discretion cases.
Collateral Attacks and Jurisdiction
[68] It is suggested by counsel for the plaintiffs that this motion is a collateral attack on a Walters J. decision granting a default judgment, which would be a final decision.
[69] As the panel consisting of Weiler J., Feldman J., and Sharpe J., noted in Cherry Central Cooperative Inc. v. D'Angelo, (2001) , 56 O.R. (3d) 655, “If the motions judge decides to set aside the default judgment, the court may also set aside the noting in default” (para. 6). This makes perfect sense and is generally the approach. However, this situation is unique in that it was the MacPherson J. judgment which created the opportunity for the noting in default by the striking of the pleadings.
[70] Referred to in Cherry is the fact that the jurist who had dismissed the motion, namely, Justice Weekes, had concluded that because a decision of the master who had struck out the pleadings for failure to file an affidavit of documents was a final order, he (Justice Weekes) had no jurisdiction as the only way to challenge the master’s order was to appeal to the Divisional Court. The panel in Cherry did not comment on this jurisdictional observation, but rather went on to consider the matter and the merits of the exercise of discretion basis.
[71] The approach of the panel possibly implicitly rejects the jurisdictional approach, ie: a counter attack on a final order. The panel noted, by referring to an earlier decision of the Court in National Bank of Canada v. Royal Bank of Canada, (1999) , 44 O.R. (3d) 533 (Justice Doherty was a member of the panel) that a default judgment granted by a Superior Court Judge pursuant to Rule 19 is not a final judgment within the meaning of Section 6(1)(b) of the Courts of Justice Act, and therefore requires an appeal to the Court of Appeal. One only obtains a final order when the remedy, ie: the setting aside of the default judgment, has been sought and refused.
[72] What confuses the issue, in this case, is that the MacPherson J. judgment, which essentially led to a default judgment, was treated by the parties in the Court of Appeal as a final judgment. In fact, Justice Weiler and Justice Doherty were on a panel that decided that Justice MacPherson had properly exercised her discretion. Therefore, it seems bizarre that the defendants could argue that the default judgment in this case, based on as it were was not a “final judgment”. The exercise of moving to set aside, in this particular case, does appear to be a collateral attack on the MacPherson judgment, which was upheld all the way to the Supreme Court. There's something not quite right about this Court reviewing a basis that had been subject to appellant scrutiny.
[73] One notes that in Cherry, the Appeal Court did go on to on to consider the exercise of the discretion under Rule 19.08. To avoid the risk of this jurist perhaps misconstruing the jurisdictional issue as an apparent collateral attack, there is no harm considering Rule 19.08 and the traditional fashion.
Rule 19.08 Principles
[74] Justice Hoy (as she then was), in Healey v. Robert McIntosh Family Trust, [2009] O.J. No. 3287, referred to Cherry in passing but concentrated on Chitel v. Rothbart, [1987] O.J. No. 661 (Sup. Crt.), overturned on appeal [1988] O.J. No. 1197, and Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd., 2007 ONCA 333.
[75] Justice Hoy summarized the principles guiding the Rule 19.08 discretion:
On a motion to set aside default judgment, the motions judge should consider whether (i) the default was unintentional and there is a valid reason for the default; (ii) the motion to set aside the judgment was served forthwith after the judgment came to the moving party’s attention; and (iii) an arguable defence on the merits exists. These principles governing the exercise of discretion to set aside a default judgment are not: however, rigid preconditions, such that the failure to satisfy any one of them necessitates the dismissal of a motion to set aside. The court must ultimately determine whether the interests of justice favour an order setting aside the default judgment. In doing so, it will have regard to the potential prejudice both to the moving party and the respondent, and the effect of any order on the integrity of the administration of justice. (para. 9)
[76] More recently these factors have been stated by Justices Weiler, Pardu and Roberts in Ken Jackson Construction Limited v. Macklin, 2017 ONCA 324 (para. 8).
VIII. Application
[77] The defendants were notified within days of the fact of Justice Walters’s judgment.
The Healey Factors
(i) The default was unintentional
[78] It is extremely difficult to say that the default of the defendants was anything other than intentional, after at least 10 costs orders. The defence argues in their factum, at one point, that the plaintiffs refused to accept payment. Why would any offer of payment by the defendants be taken seriously after the history of this litigation? If the defendants were genuine in this assertion, they could have moved to make payment into court. Aside from the factum assertion, there is no valid reason given for none payment.
(ii) The motion to set aside was timely
[79] The fact that it took two and one-half years for this motion to be heard is not indicative of alacrity. Granted the defendants would argue that it was the fault of the other side, namely the trial co-ordinators, the counsel for the plaintiffs and incompetent counsel for the defendants, etcetera. However, these are lame suggestions given the history of this matter. In this year alone there were two requests for adjournments with costs consequences.
(iii) Is there an argument defence on the merits?
[80] The “holding out” of Rose as the Ph.D. in psychology is clearly stipulated in the Statement of Claim. These facts would satisfy the necessary evidentiary requirements. The fact that one did not have to have a Ph.D. in psychology to provide counselling under the no-fault regime at that time, that some of her patients got better, that nobody ever said she was not a psychologist, that Rose had said to other insurance companies that she was not qualified, is all irrelevant.
[81] Aside from attacking the plaintiffs, the lawyers for the plaintiffs, and the lawyer for the defendants, there is no substantial defence. What is put forth is all smoke and mirrors.
(iv) The potential prejudice to either side
[82] The usual prejudice cited in this regard is that memories fail and witnesses pass on. Both sides would no doubt be so affected.
[83] The documentation between the defendants and the plaintiffs does survive.
[84] It is difficult to say that it would not be possible to mount a trial at this stage.
(v) The effect of the Overall Integrity of the Administration of Justice
[85] The fate of this litigation was effectively sealed by the Ontario Court of Appeal in their review of the MacPherson judgment. Although, case law suggests that a final order is only after a refusal to set aside pursuant to Rule 19.08. In this case, that is effectively an exhumation.
[86] For the most part, over the last fourteen years, this litigation has been preoccupied with the bad litigation behaviour of the defendants. Whatever merits there were to the defence became lost in the energy dissipated with respect to the bad behaviour.
[87] It would be an affront to the integrity of the administration of justice to allow these defendants to continue. To do so otherwise would be to render as, MacPherson J. observed, costs rulings meaningless, and to ignore the fact that the defendants, in the last 14 years, had numerous opportunities to play according to the rules and have a trial. They failed to do so and they have nobody to blame except for themselves.
Conclusion
[88] For the above stated reasons, the motion to set aside default judgment is denied.
[89] The parties are within 60 days of the receipt of this judgment to exchange bills of costs and submissions (including any reply), no greater than five pages in length, and file such documentation with the court.